IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Siskiyou)
August 16, 2012
THE PEOPLE, PLAINTIFF AND RESPONDENT,
STEVEN WARD HOWE, DEFENDANT AND APPELLANT.
(Super. Ct. Nos. MCYKCRF10-1799, MCWDCRM10-1896, MCYKCRTR10-1880 & MCWDMSTR10-1800)
The opinion of the court was delivered by: Blease , Acting P. J.
P. v. Howe CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Following the consolidation of four superior court cases that had arisen from a single investigation, defendant Steven Ward Howe pleaded no contest to second degree commercial burglary (Pen. Code, §§ 459, 460, subd. (b)); felony hit and run (Veh. Code,*fn1 § 20001, subd. (a)); cutting trees without a permit (Pen. Code, § 384a); possession of drug paraphernalia (Health & Saf. Code, § 11364); resisting an executive officer (Pen. Code, § 69); and two counts of driving with a suspended driver's license (§ 14601.1, subd. (a)). Defendant admitted that he had suffered three prior convictions for driving on a suspended license (§ 14601.1, subd. (b)(2)) and had served a prior prison term (Pen. Code, § 667.5, subd. (b)).
Defendant was sentenced to state prison for two years four months, consisting of one year four months for the burglary and one year for the prior prison term. Sentences for the two counts of driving with a suspended driver's license were satisfied by time already served. The remaining counts were sentenced concurrent to an existing parole violation or were satisfied by time served. Defendant was awarded 99 days' custody credit and 98 days' conduct credit.*fn2
On appeal, defendant contends the trial court erred at sentencing when it denied his request to dismiss the two counts of driving with a suspended driver's license. We shall modify the judgment.
The facts of defendant's offenses are not at issue, and the appellate record does not contain the police reports that were stipulated to contain the factual bases for the pleas. We thus provide a brief summary of the two counts that are at issue in this appeal.
The complaints allege that, on February 28, 2010, defendant drove a vehicle while his driver's license was suspended or revoked. (Case No. MCWDMSTR10-1800.)
On December 4, 2010, defendant again drove with a suspended or revoked license. He was involved in, and left the scene of, an accident involving an injury to another person. (Case No. MCYKCRTR10-1880.)
Defendant contends the trial court erred at sentencing when it denied his request to dismiss the two convictions for driving with a suspended driver's license (§ 14601.1, subd. (a)), or strike the associated fines, pursuant to section 41500, subdivision (a). We are not persuaded.
Section 41500 provides in relevant part: "(a) No person shall be subject to prosecution for any nonfelony offense arising out of the operation of a motor vehicle . . . which is pending against him at the time of his commitment to the custody of the Director of Corrections or the Department of the Youth Authority. [¶] . . . [¶] (e) The provisions of subdivision (a) . . . do not apply to any offense committed by a person while he is temporarily released from custody pursuant to law or while he is on parole."
At sentencing, defense counsel quoted section 41500, subdivision (a), and asked that the February 28, 2010, driving offense "either be dismissed at this time or the fines stricken, given that [defendant] is now going to the Department of Corrections." The prosecutor countered that the statute's word "pending" meant "unresolved," and the February offense was "not pending" because "he's already entered a plea to it." Defense counsel replied that the offense was "still pending" because "a sentencing has not been imposed." The trial court expressed its intent to convert the $1,800 fine to 18 days' incarceration concurrent with the prison sentence, and defense counsel responded, "So be it. Submitted." Defendant made the same argument with respect to the December 4, 2010, driving offense and obtained the same result.
It is not necessary to consider whether defendant's driving offenses were "pending" within the meaning of section 41500, subdivision (a), because they plainly fall within section 41500, subdivision (e)'s exception to the rule, in that defendant committed both offenses while he was on parole.
The probation report shows that on March 4, 2010, just four days after the February 28, 2010, driving offense, defendant was sent to state prison to "Finish" a "Term" pursuant to former Penal Code section 3056, which provided: "Prisoners on parole shall remain under the legal custody of the department and shall be subject at any time to be taken back within the enclosure [sic] of the prison." (Stats. 1957, ch. 2256.) The probation report further shows that on December 9, 2010, just five days after the December 4, 2010, driving offense, defendant was sent to state prison to "Finish" a "Term" pursuant to former Penal Code section 3056. At sentencing, it was noted that the term for defendant's present offenses would run "concurrent with his active parole violation that he's serving now."
Thus, on this record, it is plain that defendant was on parole at the time he committed both driving offenses. His request to dismiss the driving offenses pursuant to section 41500, subdivision (a), was properly denied.*fn3
The judgment is modified to award defendant 99 days' conduct credit. As so modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment and to forward a certified copy to the Department of Corrections and Rehabilitation.
We concur: ROBIE , J. DUARTE , J.